On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-12-4020.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Grall and Messano.
Defendant, together with his co-defendant Sean Richardson, was indicted for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; first-degree robbery, N.J.S.A. 2C:15-1; fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1b(4); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. Tried to a jury, defendant was convicted of second-degree robbery as a lesser-included offense of first-degree robbery and acquitted of all other offenses. The trial court granted the prosecutor's motion to impose an extended-term sentence, N.J.S.A. 2C:44-3a; and it sentenced defendant to eighteen years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. Defendant has appealed his conviction and sentence. After reviewing the record in light of the contentions advanced on appeal, we reverse defendant's conviction and remand for further proceedings.
Defendant's conviction rests upon an incident which occurred at approximately 3:30 A.M. on July 21, 2006. Raymond Nesby was driving his motorcycle southbound on the Garden State Parkway when he ran out of gas at exit 143A. He knew there was a twenty-four gas station nearby but did not want to leave his motorcycle. Using his cell phone, Nesby called a towing company for assistance and was told it would take between thirty and forty-five minutes for someone to arrive. While he was waiting, he saw two black males walking on a nearby street. He said one wore camel-colored military-style pants, a black T-shirt with white lettering and a dark military type hat, and the other wore a white T-shirt, blue denim jeans and black boots. Nesby became wary and decided to leave the motorcycle and walk to the gas station, taking his two cell phones and money clip with him. He had only gone a short distance when he saw that the two men had turned around and were heading back in his direction; Nesby decided to return to his motorcycle. The two men approached and asked if he had a cigarette. He replied that he did not smoke and walked away. As he did so, one of the two said they had a gun and Nesby raised his hands in the air. Nesby said that when he turned around, the man in the black T-shirt held a gun to his face. He was told to empty his pockets, and he handed everything over to the man in the white T-shirt. The two men then walked to a nearby housing complex owned and operated by the Irvington Housing Authority. Nesby tried to flag passing motorists for help; eventually a taxi driver stopped and drove him to the gas station where he spoke to the 911 operator.
Nesby was later shown video footage taken from surveillance cameras at the housing complex. The footage showed two men walking, one in a dark T-shirt, the other in a white T-shirt. He said those were the two men who had robbed him. On cross-examination, he agreed that the man in the dark T-shirt was wearing a light-colored hat and the other man light-colored shoes.
Also on cross-examination, defendant's attorney showed Nesby the transcript of a statement he provided to the police shortly after the incident. In that statement, Nesby said the man wearing the black T-shirt with white lettering was wearing blue denim shorts and black boots while the man in the white T-shirt wore blue jeans with black shoes. Nesby did not identify defendant to the jury as one of the men who robbed him.
Two employees of the Irvington Housing Authority testified and identified video footage taken from the Authority's surveillance cameras for the time period identified by Nesby. This footage showed two men walking along the route described by Nesby. One man was wearing a white T-shirt and jeans, the other a black T-shirt, camouflage hat and jeans. Both said they recognized the man in the white T-shirt as Sean Richardson and identified defendant as the second man. This identification of defendant was not based upon seeing his face, which was not visible in this footage, but on the clothes the individual was wearing.
Based upon the identification supplied by the Authority's employees, both defendant and Richardson were arrested and charged. Richardson subsequently entered a negotiated plea of guilty and testified for the prosecution at defendant's trial. He said he and defendant were "chilling" together. They had gone to a gas station to buy loose cigarettes but were unsuccessful because the station would only sell a complete pack, and the men did not have enough money to purchase a whole pack. On their way to the gas station, they saw a "Caucasian dude" stranded with his motorcycle. He was still there when they came back from their attempt to buy cigarettes. Richardson said he and defendant approached the man and defendant asked for a cigarette; the man responded he did not have any and turned away. Richardson said that defendant pulled out a gun, and the man handed over two cell phones and a money clip. Richardson said he and defendant headed to the nearby apartment complex and entered a building. After five to ten minutes, defendant left. The prosecutor showed Richardson the video footage taken from the Authority's surveillance cameras. He identified himself and defendant as the two men seen on the film.
Richardson admitted that in April 2007 he wrote a letter to defendant in which he stated that defendant had nothing to do with this incident. The following month, Richardson entered his own plea of guilty and identified defendant as having participated with him. He said that at the time he wrote the letter, he was in custody and he wrote the letter for his "protection." Richardson had not been sentenced at the time of defendant's trial but said he understood he would receive a sentence of seven years in prison, and would be ineligible for parole until he served 85% of that time. He admitted that he had two prior criminal convictions, both for possession of a controlled dangerous substance with the intent to distribute, within one thousand feet of school property. N.J.S.A. 2C:35-7.
The State's final witness was Detective Sergeant Salvatore Ingui of the New Jersey State Police, who interviewed defendant. Sergeant Ingui first advised defendant of his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), and questioned him about the events of that night. Defendant said he had been with Richardson and the two had tried to buy loose cigarettes. They had seen Nesby with his motorcycle, and they approached to ask for a light for a cigarette. Defendant denied taking anything from Nesby. When Sergeant Ingui referred to the video footage, defendant responded that he "had the wrong guy" and that he had not taken anything from Nesby.
Defendant, despite the fact that he had three prior criminal convictions, took the stand and testified. Prior to defendant testifying, the trial court held a hearing as to whether the fact of defendant's convictions would be admissible, State v. Sands, 76 N.J. 127 (1978), and whether they should be sanitized, State v. Brunson, 132 N.J. 377 (1993). The trial court answered both questions in the affirmative.
Defendant testified that he headed off with Richardson to the gas station to buy some loose cigarettes and saw a "White dude standing by the Parkway." Defendant said they did not reach the gas station because on the way, another man, dressed in a black shirt and dark hat, called out to Richardson. Richardson crossed the street and the two men talked; defendant said he stayed where he was. He said after the two men spoke, they headed back in Nesby's direction. Defendant testified that he had a sense of what was going on and turned around and headed back to the housing complex. He said when he reached the complex, Richardson came hurrying up behind him and joined him. He said Richardson led the way into the ...